SANDRA K. LARKIN v. WALTER F. LARKIN (12/29/78)

No. 1500 October Term 1977, Appeal from the Order of the Court of Common Pleas, Criminal Division of Montgomery County, No. 439 June Term, 1969, entered on April 14, 1977.

COUNSEL

Arthur L. Jenkins, Jr., Norristown, for appellant.

J. Peirce Anderson, Norristown, submitted a brief for appellee.

Jacobs, President Judge, and Hoffman, Cercone, Price, Van der Voort, Spaeth and Hester, JJ. Hoffman, J., did not participate in the consideration or decision of this case.

Author: Spaeth

[ 262 Pa. Super. Page 296]

This appeal arises from an order dismissing a petition for support brought by appellant-wife against her husband. The lower court dismissed the petition on the ground that the wife had not met her burden of establishing an adequate reason in law for leaving the marital domicile.

The parties were married on September 5, 1959, and after the completion of his schooling, the husband established a dental practice. The wife was a homemaker. Their marriage was filled with tension, and before their final separation the wife was hospitalized on at least ten occasions because of emotional problems. The parties have three children, whose permanent custody has been awarded to the husband. At the hearing held on the wife's petition for support, uncontradicted testimony established that on February 11, 1975, the husband either struck or pushed the wife during an argument, and then ordered her out of their house. Shortly thereafter, the wife was allowed back into the house, but eight days later she left the marital domicile and voluntarily committed herself to a hospital, to be treated for mental illness. She was diagnosed as suffering from

[ 262 Pa. Super. Page 297]

an "acute schizophrenic episode." When she left the hospital two weeks later, she declined to return to her husband, and since then has lived with friends and relatives. The husband neither consented nor objected to her leaving.

On appeal, the wife gives two justifications for her refusal to return to her husband. First, she cites her husband's actions on February 11, 1975, as cause for her leaving him. Second, she claims that she had reasonable cause to believe that her husband was engaged at the time of their separation in a meretricious relationship with his dental assistant. Because we believe the wife had adequate legal cause to leave the marital domicile, we reverse the lower court's order.

We have stated that a wage-earning spouse has the obligation to support a financially dependent spouse, and that this obligation does not arise out of debt or contract, but is imposed by law as an incident of the marital status. Commonwealth ex rel. Lebowitz v. Lebowitz, 227 Pa. Super. 593, 595, 307 A.2d 442, 443 (1973). Thus, when a wife, who has been dependent upon her husband's earnings during their years of union, separates from her husband for adequate legal cause, the husband will be required to support her when he is able to do so. Commonwealth ex rel. Darges v. Darges, 202 Pa. Super. 330, 195 A.2d 847 (1963). The law governing the burden of proof in support actions where the wife has separated from her husband is well settled. In such instances, it is unnecessary for the wife in order to procure an order of support to present as grounds for leaving her husband grounds that would also entitle her to a divorce. Rather, the wife need only show by sufficient evidence an adequate legal cause for leaving. Commonwealth ex rel. Halderman v. Halderman, 230 Pa. Super. 125, 326 A.2d 908 (1974); Commonwealth ex rel. Friedman v. Friedman, 223 Pa. Super. 66, 297 A.2d 158 (1972); Commonwealth ex rel. Young v. Young, 207 Pa. Super. 440, 217 A.2d 857 (1966); Commonwealth ex rel. Shapiro v. Shapiro, 204 Pa. Super. 135, 203 A.2d 369 (1964); Commonwealth ex rel. DiPietro v. DiPietro, 175 Pa. Super. 18, 102 A.2d 192 (1954).

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